[address-policy-wg] 2013-03 New Policy Proposal (No Need - Post-Depletion Reality Adjustment and Cleanup)

On Mar 26, 2013, at 3:33 PM, Milton L Mueller <mueller at syr.edu> wrote:

> John, you are really flirting with outright misrepresentation of the facts. 

Milton - I understand that you may hold to different views (and I respect 
your right to do so) but it would be appreciated if you could seek to have
professional level of dialogue. 

We definitely don't agree as to the "facts", but in the above, you seem to 
go beyond and imply that I am speaking to something other than that which 
I know to be true, which would be a rather serious accusation. If you have 
any doubt about my veracity at any time, please feel free to contact the 
ARIN Board with your concerns for prompt attention regarding my removal
<https://www.arin.net/about_us/bot.html>

To best of my knowledge, everything I've stated is correct; I stand 
willing to swear to it (and likely will have an opportunity to do 
exactly that some point...)

> The NSF letter expressed a detailed legal opinion of the counsel who represents the organization that made the legacy allocations. 
> He did not "withdraw" his opinion, he simply stated that it was his legal opinion and not a US government position.

Incorrect, as a "legal opinion" has a well-known meaning, that being the
explanation of a ruling issued by a court or agency, and by its very 
definition is indeed a US Government position if issued by an agency.  
The "observations" (the term Mr. Rudolph's uses to describe his USG 
disavowed letter) of an individual attorney do not constitute a "legal 
opinion", and particularly not when they are not the position of his 
agency.  Note - this probably a good thing considering the quality of 
the work involved...  I'd recommend folks review ARIN's response here
<https://www.arin.net/resources/legacy/ARIN-Rudolph-NSF-18OCT2012.pdf>
which notes the failure to consider NSF's own statement of work for the 
InterNIC at the time, its facile treatment of rights and policies per 
existing RFCs which predated ARIN, and related oversights in the logic 
from the NSF GC's letter of "observations" and "beliefs" 

> But absent legislation, or a court ruling that contradicts the NSF Counsel's
> decision, the "position" of the NTIA is quite irrelevant.

"Decision"? His views did not constitute a decision (or even a position) 
of any part of the US Government, whereas the NTIA statement is most
certainly an official position.  I concur that its not a legal opinion, 
but it was not intended to be one.  It simply states it is the official 
US Government position to be supportive of ARIN and its policies.

> So here is the real score: 
> - We have one legal opinion that ARIN has no authority over legacy holders
> - We have NO legal opinions that support ARIN's claim of authority over legacy holders. 

We'll need to agree to disagree on the above "facts", as you call them, 
since there is real disagreement over whether a letter issued by a US 
agency General Counsel that expresses no ruling (and then once contested 
then gets clarified to be simply his observations and beliefs) somehow 
constitutes a letter of "legal opinion", by any known use of the term.

> - We have no court decisions that conclusively rule that ARIN does have authority over legacy holders.

We have multiple courts who have ordered that ARIN is not required to take 
any action in violation of ARIN’s Policies nor is it required to apply a 
different standard to the transfer of legacy versus non-legacy Internet 
Protocol numbers. (In re Borders Group, Inc., 11-10614 (Bankr. S.D.N.Y.), 
In re Teknowledge Corporation; 10-60457  (Bankr. N.D. Cal.) and Global 
NAPS, Inc. v. Verizon New England, Inc., etc.)  

Whether those orders are conclusive to a judge remains to be determined; 
I am neither lawyer nor judge and don't presume to know that outcome. 

> - We have a broad statement from NTIA which does not directly address that issue.*

Agreement on this one - as you noted, a statement of US Government position 
from an agency are not law, so it should not be surprising that the statement 
cannot directly address what you may perceive to be a potential legal issue.  
It is simply a statement of official US Government position to be supportive 
of ARIN and its policies in management for number resources in the region
(that was issued after the clarification by the NSF GC that his letter 
suggesting otherwise was simply his "observations" and "beliefs" and
definitely not any position of the US Government.)

Based on the full set of facts above, ARIN has no concern operating the 
registry according to the policies set by the community in our region; 
actually, our most likely risk would come from failing to apply the 
policies to all number resources consistently.  

Thanks!
/John

John Curran
President and CEO
ARIN

p.s.  Apologies again to those in the RIPE region; tl;dr is that ARIN will
      apply policies to all resources in the region, and that point may be
      relevant when considering inter-RIR implications of policies developed
      on this mailing list.